Opinion
Case No. 3:02CV7212
June 5, 2003
ORDER
Plaintiff Robert E. Bickley brings this suit against defendant FMC Technologies, Inc. ("FMCT"), alleging claims under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), and state common law claims of malicious prosecution, abuse of process, breach of implied contract, and public policy wrongful discharge. FMCT counterclaims alleging tortious interference with its business. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1367. Pending are motions by both parties for summary judgment on each other's claims. For the following reasons, defendant's motion shall be granted as to plaintiff's claims under the FMLA. The parties' state common law claims are dismissed without prejudice.
BACKGROUND
FMCT owns and operates Stein DSI ("Stein"), a manufacturer of food processing equipment in Sandusky, Ohio.
In 1995, plaintiff began working at Stein as a welder. By 1999, plaintiff worked the second shift, from 3:30 p.m. to 1:30 a.m., four days a week.
In 1997, plaintiff was seriously ill with a kidney aneurysm and was off work for several weeks. In October, 1999, plaintiff claims he began experiencing symptoms similar to those he had in 1997. On Wednesday, October 20, 1999, plaintiff told his group leader and immediate supervisor, Dean Hershiser, that he had to leave work early because of kidney symptoms.
According to plaintiff, he saw his physician the following day, Thursday, October 21. She prescribed antibiotics and scheduled tests for Friday, October 22. After the appointment on Thursday, plaintiff claims he telephoned Bob Bell, Hershiser's supervisor, to inform Stein management that he would not be returning to work until his physician determined what was wrong with him.
On Monday, October 25, plaintiff's physician informed him that the tests for another kidney aneurysm were negative and that he may have had an infection. She signed a note to Stein stating that plaintiff was under her care from October 20, 1999, to October 25, 1999, and that plaintiff was able to return to work on Tuesday, October 26.
Plaintiff returned to work on Tuesday, October 26. He gave the doctor's note to human resources manager Chris Roggeman.
Plaintiff alleges that his timecard had been marked "unexcused." When he approached Bell and Hershiser, plaintiff claims they responded, "Well, that's what you get when you go over somebody's head, you get slapped down like a [expletive] dog." Bickley Depo. at 183.
A few days later, on November 2, 1999, the Sandusky Police Department received a bomb threat 911 call at approximately 6:45 p.m. The caller alleged: "Stein Incorporated is going to blow up in the next 24-hours." Sandusky police traced the call to a pay phone at Stein. Police Sergeant Michael Campbell and Officer Major Ruffin went to the facility to investigate the call.
Campbell and Ruffin asked human resources manager Roggeman to listen to a tape of the 911 call to see if she could identify the voice of the caller. Roggeman identified the voice as that of the plaintiff. Roggeman then asked the manufacturing manager, Dave Bertsch, to listen to the tape, telling him that the caller sounded like the plaintiff. Bertsch also identified plaintiff's voice. Plaintiff's immediate supervisor, Dean Hershiser then listened to the tape without being advised that plaintiff had been implicated. Hershiser also identified plaintiff as the caller.
Plaintiff was thereafter arrested and charged with the felony of inducing panic.
On November 3, 1999, Stein human resources director, Peter FitzGibbon, after consulting with the Stein President and the operations director, suspended plaintiff without pay pending an investigation of the bomb threat.
As part of FitzGibbon's investigation, defendant claims that two Stein employees placed plaintiff in the vicinity of the pay phone around the time the 911 call was placed. Jeff Sosa claimed that around 6:40 p.m., he received a page from North Central EMS, his other employer. He then proceeded to the pay phone to call North Central and returned to his work area after making the call around 6:45 p.m. On his return, he allegedly saw plaintiff walking toward the phone. Another employee, Tim Forrest, claimed that while walking to the restroom around 6:45 p.m., he saw plaintiff at the phone, but not on it. After Forrest left the restroom, he claims he noticed plaintiff standing in a hallway near the phone.
In a letter date December 17, 1999, Stein terminated plaintiff.
On February 11, 2000, a grand jury indicted plaintiff on the charge of inducing panic. On May 4, 2001, a jury acquitted plaintiff in the Erie County Common Pleas Court.
In April, 2002, plaintiff filed this lawsuit alleging violations of the FMLA and common law claims of malicious prosecution, abuse of process, breach of an implied contract, and wrongful discharge. FMCT counterclaimed for tortious interference with its business. Pending are motions for summary judgment on all claims. Also pending are motions by both parties to strike portions of affidavits and other documentary evidence.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
DISCUSSION
I. Plaintiff's Motion to Strike
Plaintiff moves to strike inadmissible and untrustworthy assertions in the affidavits of Bertsch, Roggeman, Hershiser, Erie Country Assistant Prosecutor Vickie Palmer, Detective Helen Prosowski, and Sgt. Campbell. These affidavits were submitted by defendant in support of its motion for summary judgment and its memorandum in opposition to plaintiff's motion for partial summary judgment.
In Wiley v. U.S., 20 F.3d 222 (6th Cir. 1994), the Sixth Circuit explained:
Rule 56(e) requires that affidavits used for summary judgment purposes be made on the basis of personal knowledge, set forth admissible evidence, and show that the affiant is competent to testify. Rule 56(e) further requires the party to attach sworn or certified copies of all documents referred to in the affidavit. Furthermore, hearsay evidence cannot be considered on a motion for summary judgment.
Id. at 225-26 (citing Daily Press, Inc. v. United Press Int'l, 412 F.2d 126, 133 (6th Cir. 1969)).
For the following reasons, plaintiff's motion is overruled.
My decision to overrule plaintiff's motion to strike refers only to defendant's evidence opposing plaintiff's FMLA claims. I express no opinion whether the evidence is admissible for plaintiff's state law claims.
A. Paragraph Six of the Bertsch Affidavit
Plaintiff claims that paragraph six of the Bertsch affidavit and the attached Bertsch-written statements of Stein employees Sosa and Forrest are inadmissible hearsay. Paragraph six provides:
On November 5, 1999, two employees, Jeff Sosa and Tim Forest [sic] approached me and advised me that at or around the time the 911 call was placed, they saw Bickley in the vicinity of the pay phone from which the call was placed. I then prepared, and had them sign, statements confirming what they witnessed. True and correct copies of these statements are attached hereto as Exhibits 1 and 2 respectively.
Plaintiff argues that Bertsch can testify that he authored the statements, but the facts contained in the handwritten statements are not based on his own personal knowledge. Therefore, plaintiff argues Bertsch is not competent to testify on behalf of Sosa and Forrest, and the statements are inadmissible hearsay.
Defendant argues that it offers Bertsch's testimony and the statements of Sosa and Forrest for the purpose of establishing the grounds on which it based its decision to terminate plaintiff's employment. Evidence is hearsay only when the out-of-court statement is offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c). In this case, the out of court statements are offered to show that they were made, and, in turn, that the defendant's ensuing decision was based on those statements. In the context of an employment discrimination case, an employer can support its case on the basis of statements made to it, even though those statements are later determined to have been untrue.
The truth of the statements is not at issue as long as the declarant had a reasonable basis to believe them to be true. Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998). Plaintiff claims Sosa and Forrest had reasons to lie and that, given their poor employment records, Bertsch had no reasonable basis to believe the statements were true.
Besides this self-serving assertion, plaintiff has not provided sufficient evidence that challenges Bertsch's reasonable basis to believe that the statements were true. The hearsay rule is, therefore, inapplicable. Id.
B. Personal Knowledge and Foundation
Plaintiff moves to strike at least fourteen portions of the affidavits of Bertsch, Roggeman, Hershiser, Palmer, Prosowski, and Campbell as lacking foundation or personal knowledge. Plaintiff presents an impractical view of the rule that a declarant must have firsthand knowledge of the facts declared to be admissible. For example, plaintiff moves to strike paragraph six of the Roggeman affidavit, that reads:
David Bertsch also listened to the recording and indicated to the officers that he believed the voice was Bickley's. To obtain another opinion, we asked Dean Hershiser, Bickley's immediate supervisor, to listen to the tape. Without being advised that Bickley had been implicated, Hershiser listened to the tape and also positively identified Bickley as the caller.
According to plaintiff, it is not in Roggeman's personal knowledge whether Hershiser overheard her identify Bickley as the caller and she cannot speculate as to his awareness of the previous identification. Furthermore, plaintiff argues that Roggeman cannot testify as to what Hershiser heard and identified. Similarly, plaintiff moves to strike paragraph three of Sgt. Campbell's affidavit that states, in part, "[o]n November 2, 1999, a bomb threat was called into the Plant." According to plaintiff, because Campbell did not have personal knowledge of where the call came from, the paragraph should be stricken. It is puzzling as to why plaintiff moves to strike these statements when he does not challenge their truth. Regardless, as a general proposition, a declarant must have had an opportunity to observe the facts declared to be admissible. 2 Wigmore, Evidence § 670 (1979). Roggeman can testify that she saw Hershiser listen to the tape and identify plaintiff as the caller, and Campbell can testify that the 911 dispatcher informed him of a bomb threat even if he did not receive the call himself. Plaintiff's motion to strike on these grounds is irrelevant and overruled as frivolous.
Plaintiff also argues that many of these statements that lack personal knowledge or foundation also are tainted, prejudicial, and irrelevant under Fed.R.Evid. 403. Plaintiff's motion is overruled on these grounds as well.
C. Best Evidence Rule
Plaintiff claims paragraph four of Roggeman's affidavit should be struck because defendant has not produced an original in violation of the best evidence rule, Fed.R.Evid. 1002. In paragraph four, Roggeman states:
After I arrived at the Plant, two Sandusky Police Officers, . . . informed me that the call was placed inside the building. At that time, David Bertsch obtained a list of all the outgoing telephone lines in the building and it was determined that the call was placed from a pay telephone on the shop floor.
Plaintiff argues the best evidence rule requires defendant to attach an original copy of the list to the affidavit.
Under Fed.R.Evid. 1002, to prove the content of a writing, the original writing is required. In this case, however, defendants are not attempting to prove the contents of the list of outgoing telephone lines. Hence, the best evidence rule is inapplicable.
Moreover, "collateral writings" are exempt from the operation of the rule. In the case of merely incidental references to documents, the need for perfect exactitude is not necessary.
Three principal factors play a role in making the determination of collateralness: 1) the centrality of the writing to the principal issues of litigation; 2) the complexity of the relevant features of the writing; and 3) the existence of genuine dispute as to the contents of the writing. McCormick on Evidence § 234 (5th Ed. 1999). The contents of the list of outgoing telephone numbers is not in dispute, and the list is not central to this litigation. Plaintiff's motion to strike on this ground is, therefore, overruled.
II. Defendant's Motion to Strike
Defendant seeks to strike portions of three affidavits attached to plaintiff's memorandum in opposition to defendant's motion for summary judgment that allegedly contain hearsay or are based on a lack of personal knowledge. Defendant also seeks to strike twenty seven documents attached to plaintiff's memorandum that defendant claims are unauthenticated.
Plaintiff claims that the challenged statements are not hearsay and are based on the personal knowledge of the declarants. Plaintiff also argues the challenged materials have all been authenticated. Rather than undertake the time consuming project of ruling on each of the challenged items one-by-one, I have simply concluded that even if I consider this evidence, plaintiff's FMLA claims fail as a matter of law.
III. FMLA
The FMLA allows eligible employees of a covered employer to take job-protected unpaid leave for up to a total of twelve weeks in any twelve month period because the employee needs to care for a family member with a serious health problem, or because the employee's own health condition makes the employee unable to perform the functions of his or her job. 29 C.F.R. § 825.100(a).
The FMLA also provides protection for employees exercising these rights. Under 29 U.S.C. § 2615(a)(1), an employer may not "interfere with, restrain or deny the exercise of or attempt to exercise, any [FMLA] right." Under § 2615(a)(2), an employer may not "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful [by the FMLA]." Claims brought under § 2615(a)(1) are generally referred to as "interference" claims, while claims brought under § 2615(a)(2) are referred to as "discrimination" or "retaliation" claims. Plaintiff claims defendant "interfered with, and retaliated against, Plaintiff for exercising his FMLA rights by initially not excusing his absence, by wrongfully terminating him, and by failing to reinstate him after May 4, 2001." Complt. ¶ 21. Plaintiff makes, therefore, three claims under the FMLA: 1) retaliatory discharge; 2) interference with his FMLA rights; and 3) failure to reinstate.
A. Retaliatory Discharge
To analyze plaintiff's claim that he was fired in violation of the FMLA for taking medical leave of absence, the Sixth Circuit uses the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Skrjanc v. Great Lakes Power Serv., 272 F.3d 309, (6th Cir. 2001) (citing Hodgens v. General Dynamics Corp., 144 F.3d 151, 161 (1st Cir. 1998)).
Under the McDonnell Douglas framework, plaintiff must first prove a prima facie case of discrimination. 411 U.S. at 802. The burden then shifts to FMCT to articulate a legitimate, nondiscriminatory reason for plaintiff's discharge. Id. at 802-04. If FMCT articulates such a reason, then plaintiff has the burden of showing that the articulated reason is in reality a pretext to mask discrimination. Id. at 804-06.
1. Prima Facie Case
In order to establish a prima facie case of FMLA retaliation, a plaintiff must show 1) he availed himself of a protected right under the FMLA; 2) he was adversely affected by an employment decision; and 3) there was a causal connection between the two actions. Skrjanc, 272 F.3d at 314.
a. Protected Right of the FMLA
Under § 2612(a)(1)(D), an employee is entitled to family medical leave for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
Plaintiff argues that from October 20, 1999, to October 26, 1999, he suffered from a "serious health condition." See § 2612(a)(1)(D). Therefore, he was entitled to family medical leave. Under § 2611(11), a "serious health condition" means "an illness, injury, impairment, or physical or mental condition that involves —
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.
Under the FMLA regulations, "continuing treatment by a health care provider," includes:
(i) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider . . . or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider29 C.F.R. § 825.114
Thus, as the statute and regulations indicate, a "plaintiff who has not been an inpatient but who claims to have suffered a `serious health condition' under the FMLA must `make a two-pronged showing of both an incapacity requiring absence form work and continuing treatment.'" Bond v. Abbott Laboratories, 7 F. Supp.2d 967, 973 (N.D.Ohio. 1998) (citing Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1164 (N.D.Ohio. 1997)).
Plaintiff argues that he satisfies the requirements for a "serious health condition" because his physician determined that he was unable to work until October 26, 1999. Therefore, he suffered a period of incapacity lasting from mid-day on October 20, 1999, until October 26, 1999. Plaintiff further argues that he satisfies the treatment element because he was seen by a doctor twice between October 21 and October 25 and he had medical testing at a hospital.
Defendant argues that plaintiff cannot satisfy the "serious health condition" standard because the physician's note indicating that he was under her care from October 20 through October 25 is not sufficient evidence. According to defendant, the note does not demonstrate plaintiff was incapacitated for the requisite four day period, and the note does not state that plaintiff was unable to work.
Defendant also argues that plaintiff's condition did not require treatment at least two times by a physician. While plaintiff saw his physician two times while he was off work, defendant argues she only treated him on the first visit when she prescribed him an antibiotic. On the second visit, she merely informed him of his test results.
Defendant also argues that plaintiff is prevented from claiming he suffered from a "serious health condition" because of 29 C.F.R. § 825.114(c). This regulation provides:
Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.
Defendant argues that plaintiff has presented no evidence that his condition should not be equated with the listed conditions.
b. Causal Connection
To prove the causal connection prong of his prima facie case, plaintiff points to the temporal proximity that existed between his exercising his FMLA rights and his termination. According to plaintiff, defendant's human resources employees "seized an opportunity to rid themselves of an employee who had what they perceived to be a reoccurring medical condition, and then hid its adverse employment decision, unchallenged, behind the bomb threat." Pl.'s Br. at 26.
Defendant argues that human resources director, FitzGibbon, who made the decision to terminate plaintiff, testified that he did not know plaintiff was absent from work. FitzGibbon Dep. 83-84. Therefore, there is no evidence of a causal connection between a request for FMLA leave and plaintiff's termination.
c. Analysis
It is doubtful whether plaintiff has made a prima facie case. Plaintiff admitted in his deposition that he was able to work on Monday, October 25, 1999. Thus, plaintiff has not proven that his condition rendered him unable to perform the functions of his job for three consecutive calendar days. Similarly, plaintiff has not provided any medical evidence that his "infection" could qualify as a "serious health condition" under the Act. Moreover, plaintiff has not responded to defendant's argument that plaintiff's termination could not have been caused by plaintiff's exercise of his FMLA rights because FitzGibbon did not know plaintiff was absent from work.
Nonetheless, it is unnecessary to even make these decisions because plaintiff's case can easily be decided on another ground. That is, no rational jury could find that defendant's articulated reason for discharging plaintiff was pretextual.
2. Legitimate Nondiscriminatory Reason and Pretext
Defendant argues that the voice identifications by Roggeman, Bertsch, and Hershiser and the statements by Sosa and Forrest were sufficient evidence to determine plaintiff was guilty of the bomb threat. FMCT had, therefore, a legitimate, nondiscriminatory reason for terminating plaintiff. Plaintiff argues the statements by Sosa and Forrest were manufactured, and the voice identifications were tainted by Roggeman. Plaintiff also argues FMCT management did not legitimately investigate other suspects. According to plaintiff, "unsubstantiated suspicions that do not give rise to a legitimate reason for termination . . . are nothing more than pretext." Pl.'s Br. at 27.
A plaintiff establishes pretext by showing the defendant's legitimate nondiscriminatory reason: 1) had no basis in fact; 2) did not actually motivate the defendant's actions; or 3) was insufficient to warrant the defendant's actions. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
The first method of establishing pretext requires the plaintiff to show the facts necessary for the defendant's legitimate nondiscriminatory reason never occurred or were false. Id.
The second method of proving pretext requires the plaintiff to establish that the weight of the circumstantial evidence makes it more likely than not that the defendant's legitimate nondiscriminatory reason is a pretext. Id. ("In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant."). A plaintiff must present additional evidence of discrimination. "If the plaintiff does not come forward with additional evidence, `the plaintiff has failed to prove pretext and judgment for the defendant is warranted.'" Noble v. Brinker Int'l, Inc., 175 F. Supp.2d 1027, 2001 U.S. Dist. LEXIS 20558, at *32-33 (S.D.Ohio 2001) (citing Kline v. Tennessee Valley Auth., 128 F.3d 337, 346-47 (6th Cir. 1997)).
The third method of establishing pretext requires the plaintiff to show that other employees, such as employees not in the protected class, did not suffer adverse employment action for the same conduct the plaintiff engaged in. Manzer, 29 F.3d at 1084.
To meet any pretext theory, "the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer's explanation." Id. at 1083. The plaintiff retains the ultimate burden of proof at all times. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000) (citation omitted).
Besides self-serving speculation, Bickley has failed to produce sufficient evidence that defendant's reasons for terminating plaintiff were based on anything other than the bomb threat. See e.g., Jones v. Orleans Parish School Bd., 679 F.2d 32, 38 (5th Cir.), modified on other grounds, 688 F.2d 342 (5th Cir. 1982), cert. denied, 461 U.S. 951 (1983) ("Whether the Board was wrong in believing that Jones had abandoned his job is irrelevant to the Title VII claim as long as the belief, rather than racial animus, was the basis of the discharge."); Jeffries v. Harris County Cmty. Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) ("[W]here an employer wrongly believes an employee has violated company policy, it does not discriminate in violation of Title VII if it acts on that belief.") (citing Turner v. Texas Instrument, Inc., 555 F.2d 1251 (5th Cir. 1977)).
Therefore, as a matter of law, plaintiff's FMLA retaliatory discharge claim fails.
B. Interference Claim
In his complaint, plaintiff alleges defendant "interfered" with his right under the FMLA by "initially not excusing his absence." Complt. ¶ 21.
Defendant argues that it treated his absences as unexcused until he provided the note from his physician on October 26, 1999, justifying his absences. According to defendant, this was the company's established practice. That is, when an employee is unexpectedly absent from work, the employee's group leader marks "unexcused" on the employee's timecard pending the employee's providing the company with an acceptable excuse for the absence. (FMCT's Answer to Interrogatory No. 2).
It is undisputed that once plaintiff turned in the note from his doctor, the absence was treated as excused. Plaintiff was not disciplined for missing work, and he was awarded short-term disability benefits for at least two of the days he was absent.
Plaintiff has, therefore, no claim that the defendant "interfered" with his rights under the FMLA.
C. Failure to Rehire
Plaintiff claims that defendant unlawfully failed to reinstate him following his criminal acquittal. This claim, according to plaintiff, is cognizable because the FMLA provides that a court may order reinstatement as a remedy, therefore, "its protections also extend to employees, including former employees, seeking reinstatement." Pl.'s Br. at 28.
When plaintiff was acquitted, he was no longer an employee of defendant. Thus, he was not an "eligible employee" under the FMLA. § 2612(a)(1). The treatment he received after he was terminated is, therefore, irrelevant. See e.g., Brohm v. JH Props. 149 F.3d 517, 523 (6th Cir. 1998). Regardless, even if this claim were cognizable, it fails for the same reasons his retaliatory discharge claim fails.
D. Statute of Limitations
The general statute of limitations for claims under the FMLA is "two years after the date of the last event constituting the alleged violation for which the action is brought." § 2617(c)(1). For willful violations, the limitation is three years § 2617(c)(2).
Plaintiff received his termination letter from defendant on December 17, 1999. He filed this lawsuit in April, 2002. Defendant argues, therefore, that the statute of limitations has tolled, and plaintiff's claims are barred.
Plaintiff argues that the FMLA uses a broad definition of the term "employee" — "any individual who has been employed by an employer as well as someone who is currently employed." Pl.'s Br. at 31 (citing the Fair Labor Standards Act, 29 U.S.C. § 203(E)(1)). Furthermore, plaintiff argues that defendant's actions are willful and, therefore, within the three year statute of limitations.
Plaintiff's argument regarding the definition of "employee" is misplaced. Also, his theory of a willful violation fails for the same reasons his underlying claims fail.
Thus, even if plaintiff could have raised a genuine issue of fact regarding his FMLA claims, they would have been barred by the FMLA's statute of limitations.
IV. State Law Claims
Having disposed of plaintiff's federal claim, I decline to exercise supplemental jurisdiction to address plaintiff's state tort law claims and defendant's counterclaim.
It is within the trial court's discretion to dismiss a cause without prejudice once the federal claims are resolved. United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966). Absent a question of federal policy, it is wiser to allow state courts to resolve state law claims. Gibbs, 383 U.S. at 726-27.
CONCLUSION
It is, therefore,
ORDERED THAT
1. Defendant's motion for summary judgment be, and hereby is, granted as to plaintiff's claims under the FMLA.
2. Plaintiff's state common law claims for malicious prosecution, abuse of process, breach of implied contract, and public policy wrongful discharge, are hereby dismissed without prejudice.
3. Defendant's state common law claim of tortious interference with business is hereby dismissed without prejudice.
So Ordered.